[43]In opposing direct access the state did not contend that the High Court should first pronounce on the matter, but rather fired the first salvos of its new approach to the substantive issues raised. Its contentions will be dealt with in the course of this judgment, and it will suffer no prejudice from having the two matters consolidated. On the contrary, like all the parties it will gain from having the pieces of the puzzle placed together as would happen if the application for direct access is granted.
[44]In essence the enquiry into the common law definition of marriage and the constitutional validity of section 30(1) of the Marriage Act is the same. Are gay and lesbian people unfairly discriminated against because they are prevented from achieving the status and benefits coupled with responsibilities which heterosexual couples acquire from marriage? If they are, both the common law definition as well as section 30(1) must have the effect of limiting the rights contained in section 9 of the Constitution. If not, both will be good. It must be emphasised that it is not possible for one of the two provisions concerning marriage that are under attack in this case to be consistent with the Constitution, and for the other to be constitutionally invalid. In the circumstances, a refusal to consider both together would amount to no more than technical nicety. In the circumstances of this case, therefore, it is clearly in the interests of justice that the application for direct access be granted and that the Fourie and the Equality Project matters be heard together.[1]
- ↑ At the hearing counsel for the Minister of Home Affairs raised a preliminary challenge to the competence on the papers before it of the SCA to develop the common law. He pointed to the fact that in their notice of motion the applicants had merely asked for a declarator that stated that they had a right to marry, and that went on to require the responsible officials to marry them. In their founding affidavits, however, the applicants clearly referred to the need to develop the common law so as to enable same-sex couples to marry. The case brought by the applicants concerning the common law, and the one launched by the Equality Project challenging the statute as well, are being dealt with together in this Court. The state suffered no prejudice as a result of the way the
